Dural (a pseudonym) v The Queen [2021] VSCA 82

1 The applicant is facing trial in the County Court on a single charge of making a threat to kill, contrary to s 20 of the Crimes Act 1958. To date, he has chosen to represent himself in that proceeding.[2]

2 On 18 May 2020, at a pre-trial hearing conducted before the judge allocated to hear the trial, Judge Murphy, the applicant applied to the judge for him to disqualify himself on the grounds of bias. The judge refused the application.[3] The applicant then applied to the judge for a certificate under s 295(3) of the Criminal Procedure Act 2009. This application was also refused by the judge.[4]

3 Subsequently, the applicant filed an application in this Court under s 296(1) for a review of the judge's refusal to certify. In accordance with Practice Note SC CA 2, the applicant also filed an application for leave to appeal against the judge's refusal to disqualify himself (although, as s 295(3) makes clear, a party may not seek leave to appeal unless he or she has first been granted certification).

4 We invited the applicant to advance his substantive complaints about bias in support of the application to review the judge's refusal to certify. He took up that opportunity and, by reference to the transcript and the video recording of the several hearings before Judge Murphy, gave a clear explanation of why - as he put it - he felt that 'the scale was really tipped against me all the way'.

5 As will appear, there were instances of procedural unfairness in the course of the three hearings which make the applicant's sense of grievance entirely understandable. These events highlight the critical importance of proper notice being given of procedural steps, especially when a litigant is unrepresented. Crucially, however, the unfairness was attributable to acts and omissions of the prosecution. Nothing occurred to indicate actual bias on the judge's part. Nor would a fair-minded lay observer have had cause to consider that the judge might not be impartial.

6 In the circumstances, the judge's refusal to certify is unexceptionable. The application for review must therefore be refused.

7 The offence with which the applicant is charged is alleged to have occurred on 19 July 2017 at the offices of the Victorian Legal Services Board ('the Board'). The Board had earlier decided not to uphold a complaint which the applicant had made about the conduct of a solicitor who had acted for him in earlier legal proceedings. On the day in question, the applicant was present for a review of the Board's decision.

8 During the course of the review the applicant is alleged to have become angry and threatened to kill an employee of the Board, KP. The applicant's alleged threat was reported to police. He was arrested, interviewed and subsequently charged. He denied the charge.

9 The applicant was committed to stand trial, following a contested committal, in July 2019. In the second half of 2019, and in early 2020, there were directions hearings in the County Court before Judge Gamble, Judge Lacava and Judge Gwynn. The matter was fixed for trial on 18 May 2020, and the trial and any further pre-trial directions hearings were allocated to Judge Murphy.

10 The applicant appeared before Judge Murphy on 11 March 2020, 17 March 2020 and 18 May 2020. At the hearing on 11 March 2020, the applicant requested the judge disqualify himself for bias on the basis that he had previously 'worked with John Cain'. The judge refused that request.

11 On 17 March 2020, the matter was again listed for directions. The applicant appeared, but there was no appearance for the prosecution. The judge came onto the bench and immediately addressed the applicant as follows:

[Mr Dural], the prosecution - the counsel for the prosecutor indicated that he's unavailable so we've had to adjourn this matter until 26 March. So the matter will proceed on that day.

12 The applicant then asked the judge whether he could say something, before telling the judge that he was not available on 26 March. There was then discussion between the judge and the applicant about other suitable dates. A suitable date was not able to be found, and the matter was adjourned to a date to be fixed. At the conclusion of the hearing, the applicant asked for a recording of the hearing to be given to him. The judge refused this application, leading the applicant to say that he was 'just joking' and 'just trying to play up' because - he said - he knew that the judge would not make that order.

13 The hearing giving rise to the Bias Ruling and the Certification Ruling occurred on 18 May 2020. During that hearing, there was an extensive discussion between the judge, the prosecutor and the applicant concerning, amongst other things, subpoenas and the provision of documents. Specifically, the applicant sought to subpoena BN, a person who had witnessed a statement made to police by KP; and also RD, the Board's Executive Director, Complaints and Intervention.

14 A further issue that arose on 18 May 2020 concerned the applicant's request to the judge that he order the arrest of ES, a solicitor acting on behalf of the Board and against whom the applicant had made various allegations of wrongdoing. When asked whether he was going to make an order to arrest ES, the judge said that he was not going to make such an order. He then said:

Mr [Dural] you can't make allegations against solicitors and submit that the Court should arrest them for contempt without any basis to do that. It happens all the time that agencies are requested to produce documents and they don't produce them, and they do a further search and they find further documents and they bring that to the attention of the Court.

15 There was then the following exchange between the applicant and the judge:

APPLICANT: Well, your Honour, we'll stop here.

HIS HONOUR: No, no.

APPLICANT: You've a duty.

HIS HONOUR: No, just listen to me ---

APPLICANT: You're taking sides, your Honour.

HIS HONOUR: I'm not taking sides.

APPLICANT: Please dismiss yourself. Please dismiss yourself.

HIS HONOUR: I'm not taking sides.

APPLICANT: Please, you are showing obvious bias.

HIS HONOUR: I am not ---

APPLICANT: And it's apprehended bias, you have taken sides.

16 There was then further discussion between the applicant and the judge about subpoena and document issues. During the course of this discussion, the judge said that some of the submissions made by the applicant were 'irrelevant to the proceeding' that he was then facing. This discussion led the applicant to then say:

Your Honour, please dismiss yourself because you have got obvious bias. I want this to be heard by a judge or make an order that I will take to the Court of Appeal. Your Honour, I can't continue, because I have asked Your Honour to give me an email and this would be in my best interest and in the best interest of administrating the justice [sic] for Your Honour to be excused.

17 The judge then ruled on the applicant's bias application, saying:

The test that is to be applied is a well-informed observer observing the interchange between myself and you. The well-informed observer would know that in the course of directions hearings, judges are often asked to set aside subpoenas and then they explain to litigants the basis on which subpoenas can be set aside and the relevant legal principles that are to be applied.

That is what I have been doing and so a well-informed observer would not regard me as having an apprehension that I have made a decision one way or the other against you and that I am not capable of deciding further rulings or presiding over the trial, when and if it occurs, when it occurs in front of a jury.

So I decline your application that I excuse myself - that I disqualify myself on the grounds of bias.

18 The applicant then told the judge that he would seek to appeal against the Bias Ruling. There was then further discussion, including about whether the applicant needed certification under the Criminal Procedure Act before he could seek leave to appeal. In the course of this discussion, the applicant said that what had occurred was 'a disgrace to this country'. The judge then said that he would stand the matter down for half an hour while he looked at s 295(3) of the Criminal Procedure Act. The applicant responded:

Your Honour, you go on a break and just explain it, Your Honour, just to have something go on. You just take half an hour and talk to your friends and we'll come back. We'll go for half an hour. That's what you ask, I'm happy to do that. Can I leave now?

19 Upon the resumption of the hearing, and after some further discussion, the judge delivered the Certification Ruling. In essence, the judge refused the application to certify under s 295(3) because he did not regard the Bias Ruling as attended with sufficient doubt to justify certification. The judge said:

The decision is a routine application of well-recognised rules in relation to apprehension of bias. It is a regular occurrence that there be exchanges between the Court and parties as to matters under consideration in interlocutory proceedings where the full merits of the proceeding have not been explored and where further submissions will be sought before ultimate rulings are made. This applies particularly where a party is unrepresented.

Here [Mr Dural] took the view that there was an apprehension of bias after the court counselled him in relation to making allegations against practitioners and seeking to have one of the practitioners cited for contempt.

The exchange with [Mr Dural] was in the context of the court maintaining control over the proceeding and seeking to protect individuals from unwarranted accusations against them in the course of the conduct.

In circumstances where a well-informed observer would expect the court to undertake that action, I do not accept that a routine ruling following resistance by a litigant to statements of that effect is of sufficient doubt to justify the granting of a certificate, and further, the granting of a certificate would have the effect of fragmentation of the proceeding which was not the purpose behind the regime of interlocutory appeals established under the Criminal Procedure Act.

20 In his application for review of the Certification Ruling, the applicant identified the grounds of this application as:

contempt of court by [ES] including attempting to pervert the course of justice, Perverting the course of Justice and Perjury, contempt in the face of the court and disobedience contempt. The Judge failed in his duty in the administration of Justice and he was inattentive to the issues of the subpoenas and demonstrated Judicial Bias, Actual Bias and Apprehended Bias at this hearing [18 May 2020] and two previous hearings and Setting aside the subpoena about one of key witness statement [sic], Denial of fair hearing and Natural Justice as required under Human Right Charter be given fair hearing, Rule of Law.[5]

21 In his notice of application for leave to appeal, the applicant identified the grounds of his appeal as:

contempt of court, contempt in the face of the court and disobedience contempt. The Judge failed in his duty in the administration of Justice and he was inattentive to the issues of the subpoenas and demonstrated Judicial Bias, Actual Bias and Apprehended Bias at this hearing and two previous hearings.[6]

22 In support of these grounds, the applicant filed detailed written submissions asserting that the judge had made decisions about subpoena-related issues which the applicant wished to challenge. It is not necessary to summarise those submissions, for reasons which were explained to the applicant at the start of the hearing in this Court: first, the judge did not make any such decisions; and secondly, the application before the Court relates only to the Bias Ruling.

23 The applicant also filed written submissions about the judge's refusal to deal with ES for contempt. It is similarly not necessary for us to summarise those submissions. To the extent that the judge made any decision not to deal with ES for contempt, such a decision would not be 'an interlocutory decision made in the proceeding', within the meaning of s 295(2) of the Criminal Procedure Act, so as to permit the applicant to appeal that decision in accordance with that section_._

24 In written submissions directed to the assertion that the judge should be 'dismissed on the basis of judicial bias', the applicant identified five grounds. These may be summarised as follows:

(1) The judge made errors of law 'on numerous occasions with rulings that were legally incorrect and which failed the test of reasonableness in law', and which 'were in contradiction to the relevant laws and court rules for criminal proceedings'.

(2) The applicant was denied procedural fairness in the judge's three hearings, 'where there has been much inequity between the two parties and further serious disadvantage as a consequence of [the judge's] rulings'.

(3) The judge was biased from his first appearance on 11 March 2020. In presiding at the three hearings, the judge's conduct, comments and decisions 'demonstrated both bias and the apprehension of bias'.

(4) The judge was previously associated with a number of people involved directly or indirectly in the case. He did not disclose his associations and relationships, and was not prepared to excuse himself from the case on his own motion.

(5) The judge 'often intervened to fill the gaps in the Prosecution's case and on matters where [the applicant] had raised issues to which the Prosecution had not responded and also when the Prosecution had provided incorrect and misleading information to the court'.

25 In oral argument, the applicant submitted that a particularly serious example of the judge's bias was disclosed at the commencement of the 17 March 2020 hearing. It should be noted that, at the conclusion of the hearing on 11 March, the judge had adjourned the matter to 17 March at 9:30 am and extended the applicant's bail to that date.

26 The applicant attended on 17 March, as required, but the prosecutor was not present. When the matter was called on, the following exchange took place:

HIS HONOUR: Mr [Dural] the prosecution - the counsel for the prosecutor indicated that he's unavailable so we've had to adjourn this matter until 26 March. So the matter will proceed on that day.

ACCUSED: Your Honour, can I say something?

HIS HONOUR: Well look, it's difficult for you to say anything at this point because the prosecution are not here.

ACCUSED: I'm not available on 26 March.

HIS HONOUR: What day suits you?

ACCUSED: 30 March, because I work, I push trolleys and clean in between, so I have taken this day off because it was planned eight months ago. So I had to inform my boss at least two weeks before. So I'll be able to come on 30 March and because prosecutor can't just go and set a date, and there is a duty to me as well owned by the court and by the prosecutor, if they want to cancel or change anything. And I think Your Honour has a duty to maintain that order in the court. To inform the - - -

HIS HONOUR: Look, don't tell me what I've got to do.

ACCUSED: I think Your Honour - - -

HIS HONOUR: No, just - all right, you say you arrange your shifts so you're not available on the 26th?

ACCUSED: Yes, Your Honour.

27 The applicant drew particular attention to the judge's opening statement that the prosecutor had indicated that he was not available and the Court had therefore had to adjourn the matter until 26 March. This showed, the applicant submitted, that there had been some ex parte communication between the prosecutor and the Court. Worse, the judge had, in the absence of the applicant and without notice to him, acceded to the prosecutor's application to adjourn the matter until 26 March (a date which apparently suited both the prosecutor and the Court).

28 In oral argument, the applicant also contended that the judge did not treat the parties equally. Moreover, the judge intervened both to assist the prosecutor and to fill in gaps in his arguments. The applicant submitted that the following were examples of the judge's failure to treat the parties equally:

(1) At the hearing on 18 May, the applicant referred to an email that he had sent to the judge, which had been copied to the OPP. Notwithstanding that the email had been copied to the OPP, the judge admonished the applicant saying that he could not send a document to the judge or his chambers without sending it to the OPP. The judge's reaction was to be contrasted with his lack of reaction at the prosecutor having communicated with the Court (not copied to the applicant) advising of the prosecutor's unavailability on 17 March and the need for an adjournment to 26 March.

(2) At the hearing on 18 May, the prosecutor was permitted to raise, without any notice having been given to the applicant, a question about the applicant's fitness to be tried. The prosecutor was permitted to make detailed submissions, in which he said that there was a 'real and substantial question as to [the applicant's] fitness based on what seems to us to be a delusionary and conspiratorial approach to the evidence'. The judge permitted the prosecutor to make the submissions he wished to make, but then interrupted the applicant's submissions in reply and would not let him complete those submissions, saying that he would 'park that' issue at that time.

(3) At the 11 March hearing, the applicant raised an issue about the late filing and serving of the indictment (it appears that the indictment was served a day late). The prosecutor responded that it was not normal to seek an extension of time for the service of an indictment. He then said, 'but if it is required to be sought, then yes I would make the application'. After further discussion, the judge referred to this statement as the prosecutor having made an oral application, which he was going to grant. The applicant submitted that, in fact, the prosecutor had only foreshadowed the making of an application if it was necessary. This example showed the judge's willingness to step in and help the prosecutor.

(4) In debate, on 11 March, about whether the indictment had been filed, the judge, without any proper basis, made the following contradictory statements:

I think it has been filed. It will be filed by Tuesday, but anyway. It's probably been electronically filed. It's been filed, right.

(5) At the 11 March hearing, the applicant referred to the fact that the prosecution opening appeared to be incomplete - containing only paragraphs numbered 1, 2, 42, 43 and 44. Without hearing any submission from the prosecutor, the judge immediately said, 'Yes, well that's a typing error, that's right.'

(6) During the course of hearings, the judge repeatedly told the applicant to sit down and displayed hostility towards him; whereas the prosecutor was given latitude to make whatever submissions he wished to make, free from the hostility the judge displayed towards the applicant.

29 During the course of the hearing before us, the applicant also asserted that the judge 'facilitated the OPP telling lies'. The applicant said, 'there are so many lies'. At the heart of his complaint in these applications, however, was what he said was the judge's 'favouritism to the OPP'.

30 In our view, the applicant has a legitimate grievance about a number of the procedural matters he has identified. For an unrepresented person facing a serious criminal charge, apparent procedural unfairness is very likely to cause stress and anxiety. So it is hardly surprising that the applicant felt a sense of injustice and unfair treatment when he arrived at court on 17 March for a scheduled hearing (having arranged time off work), only to be told that the hearing had already been adjourned at the prosecution's request.

31 It is also a legitimate complaint that, while the judge did not appear to be troubled by those events, his Honour admonished the applicant (incorrectly) during the hearing on 18 May 2020 when he said that communications with the Court had to be copied to the other side. The applicant's perception of unfairness would only have been exacerbated when, on that occasion, he was confronted - without warning - by prosecution submissions that he was not fit to stand trial because he was 'delusional', and was then prevented from making his own full submissions in response.

32 Proper notice is a fundamental element of procedural fairness. Every litigant is entitled to notice of what is to happen next in the proceeding, and when it is to occur. Strict observance of that requirement is never more important than when the party entitled to notice is an unrepresented litigant. For similar reasons, the prohibition on ex parte communication with the court must be strictly observed when one party is unrepresented. As this case illustrates, a perception of unfairness once created can readily colour an unrepresented litigant's view of an entire proceeding.

33 The question of judicial bias is, however, quite different. It is, of course, a very serious allegation that a judge has actually, or apparently, breached the fundamental judicial obligation of impartiality.

34 The first limb of the applicant's argument was that the judge showed actual bias against him, that is, had formed an adverse view of him and was not judging matters on their merits. Having watched the audio visual recordings of each of the three directions hearings, we are unable to see any basis upon which it could sensibly be contended that the judge displayed actual bias. When his Honour challenged the applicant on a particular contention, or indicated that he did not propose to do what the applicant had asked him to, he was doing no more than his duty required, in managing a procedural hearing in a busy trial court.

35 The second limb of the argument alleged ostensible or apprehended bias. The principles are well settled. The bias rule is breached if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[7] The level of knowledge and sophistication which a fair-minded observer hypothetically brings to the question is that of a lay person (not a lawyer), informed as to the relevant facts of the case and sufficiently knowledgeable and informed to be capable of bringing a rational and reasonable assessment to bear.[8]

[A fair-minded observer] would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. [The observer] must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. [The observer] will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, [the observer] would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.[9]

37 Much of the applicant's written material makes complaint about rulings and decisions which the applicant contended had been made, and which he submitted were incorrect. As noted earlier, however, although the judge expressed views about various matters in the course of argument, his Honour did not ultimately make any particular ruling about which complaint could now be made. Specifically, we see nothing in what the judge said about the various subpoena and contempt issues raised by the applicant which might cause a fair-minded lay observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of any of the issues he was required to decide.

38 As to the assertion that the judge had previously been associated with individuals involved directly or indirectly in the applicant's case so as to require him to disqualify himself for bias, the applicant's assertions lacked any evidentiary foundation. In any event, proof of some unspecified connection with a particular person or persons not directly associated with the prosecution of the applicant, or his case, could not, of itself, have required the judge to disqualify himself.

39 With respect to the applicant's complaints that the judge intervened to assist the prosecutor on a number of occasions, in our view, there is nothing in these complaints. The matters sought to be agitated by the applicant (service of the indictment one day late, the unusual number of paragraphs in the prosecution opening and the like) were, in the scheme of things, minor. Having examined all of the applicant's complaints, again, we are not persuaded that a fair-minded observer might reasonably apprehend that the judge might not bring an impartial mind to the applicant's case.

40 The video recordings reveal the judge, on occasions, displaying impatience with the applicant. But we have discerned nothing which would support an argument of apprehended bias. Equally, there are occasions when the applicant speaks over the judge and appears not to listen to him, evidently anxious to make sure he gets his point across. On occasions, the applicant is openly rude to the judge.[10] Commendably, the judge does not respond.

41 To our observation, the judge endeavoured to engage with the applicant on the various issues that he wished to raise. At times, the judge was firm, in an understandable endeavour to confine submissions to what was then relevantly before him. We have already acknowledged the applicant's sense of grievance at not being allowed to make full submissions in response to the prosecutor's submissions concerning his fitness to be tried. In our view, however, it was quite appropriate for the judge to move the debate back to what was required to be dealt with at the time.

42 As we explained to the applicant at the commencement of the hearing in this Court, the public interest demands that hearings be managed having regard to the pressure on court time and taking into account the interest of all litigants.[11] We reject the applicant's submission that the judge displayed any favouritism to the prosecution in the handling of the proceedings before him.

43 We also reject the applicant's contentions that lies (in the sense of deliberate falsehoods) were told by the prosecutor, or facilitated by the judge, during the course of the hearings in March and May 2020. The applicant might well take issue with the correctness of a particular factual statement made during one or other of those hearings.[12] Whether any identified misstatement was material is, of course, another question. More fundamentally, however, there is nothing in the material which suggests that the OPP 'told lies', or which supports the notion that the judge facilitated the telling of any 'lies'.

44 In our view, the judge was plainly correct when he refused to disqualify himself for bias. Nothing we have seen or heard would have justified the judge in disqualifying himself for bias. Indeed, for the judge to have acceded to the bias application would have been an abdication of his judicial function.[13] Additionally, the judge was right to refuse to certify on the basis that his decision was not attended with sufficient doubt.

45 The application for a review of the judge's refusal to certify under s 295(3) of the Criminal Procedure Act 2009 will be refused.

[1] Because this is an interlocutory proceeding, a pseudonym has been used in the place of the name of the applicant.

[2] In announcing his appearance in this Court, the applicant described himself as being 'self-represented by choice'.

[3] DPP v [Dural] (Unreported, County Court of Victoria, Judge Murphy, 18 May 2020) ('Bias Ruling').

[4] DPP v [Dural] (Unreported, County Court of Victoria, Judge Murphy, 18 May 2020) ('Certification Ruling').

[7] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344-5 [6] ('Ebner').

[8] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87-88; Johnson v Johnson (2000) 201 CLR 488, 507-9 [52]-[53].

[9] (2000) 201 CLR 488, 508-9 [53] (citations omitted).

[10] For example, when the applicant said at the end of the hearing on 17 March 2020 that he was 'just trying to play up'; and later towards the end of the hearing on 18 May 2020, when the applicant invited the judge to 'talk to [his] friends'.

[11] Roberts v Harkness (2018) 57 VR 334, 359 [66]; [2018] VSCA 215 (Maxwell P, Beach and Niall JJA).

[12] For example, during the course of the hearing on 11 March 2020, the applicant took great issue with a statement which he said had been made by the prosecutor that he (the applicant) had issued a particular subpoena. For completeness, we should note, however, that assuming in the applicant's favour that this is what the prosecutor said (a matter which itself is capable of some debate) the contention that any such statement was a lie is without foundation. Moreover, misleading the judge about who issued a particular subpoena could not have had any relevant consequence either favourable to the prosecution or detrimental to the applicant.

[13] See Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 294.